AJA Associates v. Army Corps of Engineers, 86-1377
| Decision Date | 05 May 1987 |
| Docket Number | No. 86-1377,86-1377 |
| Citation | 817 F.2d 1070 |
| Parties | , 17 Envtl. L. Rep. 20,657 AJA ASSOCIATES, Appellee, v. ARMY CORPS OF ENGINEERS and Charles T. Myers, III, Appellants. |
| Court | U.S. Court of Appeals — Third Circuit |
F. Henry Habicht II, Asst. Atty. Gen., Edward S.G. Dennis, Jr., U.S. Atty., Cynthia J. Giles, Asst. U.S. Atty., Philadelphia, Pa., David C. Shilton, Bonnie A. Sullivan, Jacques B. Gelin (argued), Attys., Dept. of Justice, Charles A. Openchowski, Office of the Chief Counsel, U.S. Army Corps of Engineers, Washington, D.C. for federal appellants.
Albert A. Ciardi, Jr., Keith N. Leonard (argued), Ciardi, Fishbone & DiDonato, Philadelphia, Pa., for appellee.
Before HIGGINBOTHAM and STAPLETON, Circuit Judges, and RODRIGUEZ, District Judge. *
The Army Corps of Engineers ("the Corps") appeals from the district court's remand order concerning an application for a dredge-and-fill permit by AJA Associates ("AJA"). Because the applicant has already been given the meaningful opportunity to be heard that due process requires we conclude that the district court erred in remanding to the Corps for "an informal oral hearing." Accordingly, we will instruct the district court to vacate its remand order and consider AJA's remaining assertions of impropriety in the processing of its application.
AJA owns property on a canal in Key Colony Beach, Florida. On September 21, 1983, the prior owner of AJA's lot, Glen Cafferty, filed an application with the Corps for a permit to construct a seawall (or "bulkhead"), to backfill behind the seawall, and to dredge the base of the seawall. These activities require a permit under Sec. 404 of the Clean Water Act, 33 U.S.C. Sec. 1344 (1986), and Sec. 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. Sec. 403 (1986). The Jacksonville District of the Corps published a notice describing the application on November 2, 1984. Consideration of the application, number 84R-4588, had been delayed by the Corps until that time because it was negotiating with the City of Key Colony Beach to secure modification of a city ordinance that required seawall construction in the manner presented in the application.
On November 27, 1984, a Corps Area Engineer submitted a report that considered this permit application along with 15 other similar proposals for the construction of bulkheads. The report concluded with respect to application 84R-4588: Record at 51. Thus the report did not support construction of the seawall as proposed.
In response to the public notice, the Environmental Protection Agency, the Fish and Wildlife Service of the Department of the Interior, and the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration submitted comments. Each agency recommended denial of the AJA permit application as well as denial of permits for the 15 other similar projects under consideration. The EPA comment, for example, describes the wetlands at issue in the permit applications as "a valuable public resource." Wetlands provide "fish and wildlife habitat, hydrological buffering, shoreline stabilization, water purification, pollution and erosion traps, and food chain production." According to the EPA, "[a]lthough the proposed projects would impact only a relatively small area of wetlands, the cumulative effects of many such projects would have a devastating impact on the wetland resources of the Florida Keys." Record at 67.
Albert Ciardi, a principal in the AJA partnership, then received a letter from an official in the Corps Permit Section dated February 5, 1985, and addressed to Glen Boe, the manager who had actually submitted the permit application for the AJA lot. The letter requested a written response from the applicant addressing the three agency reports that had recommended denial of the application; copies of the three reports were sent along with the letter. In addition to addressing the agency reports, the Corps letter directed the applicant to provide a discussion of (1) the public and private need for the project, (2) why the proposed fill must be located in the wetland resource, and (3) alternative plans that have been considered and why the alternatives are not feasible.
Ciardi's response states that the private need "is so that I can construct a home." The public need "is that the project be constructed safely and that a monstrous pier not jut out in the middle of the waterway which can be dangerous to boat traffic." Ciardi wrote that the seawall must be located in the wetland resource "[b]ecause that is where it is." He stated that he had not considered an alternative site "because I have spent good money for this site; ergo, it would not be feasible to spend money for another site." Record at 86. Ciardi also wrote:
Having this information in your possession, why don't you deny the permit so that we can take the matter before the courts and let a Judge make a decision that will determine once and for all the wisdom of your denial of a permit on a lot which is totally enclosed by two (2) built-up lots with bulkheads on a lagoon which has been in existence for many years without any significant environmental impact whatsoever.
Record at 87. Glen Boe submitted a five-page response to the agency reports, but began with the statement:
The issues surrounding the applications in question, as you well know, have been discussed at great and tedious length for at least a decade. It is difficult to believe that you really want to rehash the hours of discussions, letters, arguments, contentions, inspections, claims, counterclaims, allegations, opinions, suggestions, demands and lamentations that have spewed forth for lo these many years.
Record at 88. A July 30, 1985, letter from Ciardi to the Corps of Engineers complained about the length of time the application process was taking. Ciardi stated, Record at 119. In all, Ciardi wrote four threatening letters to the Corps. See Record at 86-87, 101-02, 104, 118-19.
On August 5, 1985, the Corps completed its evaluation of the permit application and notified Ciardi that it would not grant a permit. The Corps had prepared a seven-page "Statement of Findings on 84R-4588" for the administrative record. Ciardi apparently received a copy of this statement, which summarized all the information before the Corps and the basis for its decision, along with his notice of permit denial. The Corps found Ciardi's proposed project "not in compliance with the Corps wetland policy since the area to be filled is considered a vital wetland that constitutes a valuable and productive public resource." The Corps also concluded that the project was "not in accordance with the 404(b)(1) guidelines since practical alternatives are available for shoreline protection." The permit was denied because the proposed work "would have an unacceptable adverse impact on an important public resource by destroying wetland vegetation and productive seagrasses." Record at 127. The notice to Ciardi, signed by Colonel Charles Myers of the Corps, stated, "I have evaluated your application and the cumulative impacts of permitting many other such applications in the city of Key Colony Beach and have determined there would be an adverse cumulative impact on the environment if these permits were issued." Record at 128.
On September 4, 1985, AJA filed suit in district court, seeking to set aside the permit denial. AJA asserted that the Corps' action was arbitrary and thus not in accordance with law, and that the Corps unlawfully delayed evaluation of the permit application. Nowhere in the complaint did AJA assert that the Corps should have held a hearing as a part of its decisionmaking process.
The Corps on January 13, 1986, filed a motion for summary judgment and a motion for a protective order to prevent the deposition of Colonel Myers. In opposition to the motion for summary judgment, AJA argued for the first time that procedural due process required an adjudicatory hearing during the Corps' review of AJA's application. AJA also argued, as asserted in the complaint, that the Corps had erred in taking an unreasonable amount of time to process the application and in considering the environmental impact of AJA's application together with the 15 other similar proposals before the Corps. In a memorandum opinion dated June 12, 1986, Judge Weiner denied the Corps' motions and remanded the case for an administrative hearing. The district court held that "plaintiff is entitled to appear at an informal oral hearing before a proper agency officer so that plaintiff can hear and respond to reasons why its individual permit application (84R-4588) was denied by the Army Corps of Engineers." Judge Weiner stressed, "We do not hold, however, that due process requires an informal oral hearing in every application before defendant." Mem.Op. at 5.
Before considering the merits of this appeal, we must determine whether the court has...
To continue reading
Request your trial
-
O'CONNOR v. Corps of Engineers, US Army
...formal, adjudicatory hearing is required under section 404 of the Clean Water Act. 33 C.F.R. § 327.4; AJA Associates v. Army Corps of Engineers, 817 F.2d 1070, 1073-1074 (3rd Cir.1987); Buttrey v. United States, 690 F.2d 1170, 1178 (5th Cir.1982). 33 C.F.R. § 327.4 leaves it up to the discr......
-
Water Works & Sewer Bd. v. U.S. Dept. of Army
...etc.) v. Harris, 603 F.2d 310, 326 n. 36. (2d Cir.1979)) aff'd 633 F.2d 206 (2d Cir.1980). See also AJA Assoc. v. Army Corps of Engineers, 817 F.2d 1070, 1073-74 (3d Cir.1987). In Fund for Animals, Inc. v. Rice, 85 F.3d 535, 545 (11th Cir.1996), the Eleventh Circuit Court of implied that th......
-
Marshall v. Lansing
...all clear whether the court's second remand was a final order, appealable under 28 U.S.C. Sec. 1291. See AJA Assocs. v. Army Corps of Engineers, 817 F.2d 1070, 1072-73 (3d Cir.1987) (a remand to an administrative agency that finally resolves an important legal issue and that cannot receive ......
-
Papotto v. Hartford Life & Accident Ins. Co.
...accorded significant weight to the third factor—i.e., potential for evasion of future review. See AJA Assocs. v. Army Corps of Eng'rs, 817 F.2d 1070, 1073 (3d Cir.1987) (finding jurisdiction over a remand requiring the administrative agency to provide a procedural due process hearing becaus......
-
Federal Wetlands Law Permits Under §404
...327.4(a). 164. Id . §327.4(b) (2008). See Buttrey v. United States, 690 F.2d 1170, 1176, 13 ELR 20085 (5th Cir. 1982). 165. 817 F.2d 1070, 1073-74, 17 ELR 20657 (3d Cir. 1987). 166. 33 C.F.R. §327.4. See Hough v. Marsh, 557 F. Supp. 74, 79-80, 13 ELR 20610 (D. Mass. 1982). 167. 33 C.F.R. §3......
-
Practicable Alternatives for Wetlands Development Under the Clean Water Act
...Fla., 567 F.2d 1332, 1337, 8 ELR 20194 (5th Cir. 1978) (Rivers and Harbors Act). See also AJA Assocs. v. Army Corps of Eng’rs, 817 F.2d 1070, 1073, 17 ELR 20657 (3d Cir. 1987) (no entitlement to informal hearing after permit denial when ap-plicant did not request hearing during comment peri......
-
List of Case Citations
...136 F. Supp. 2d 81 (E.D.N.Y. 2001) ............................................... 24, 34 AJA Associates v. U.S. Army Corps of Eng’rs, 817 F.2d 1070, 17 ELR 20657 (3d Cir. 1987) .............. 79 Alameda County Assessor’s Parcel Nos. 537-801-2-4 & 537-850-9, 672 F. Supp. 1278 (N.D. Cal. 198......
-
Federal Wetlands Law Permits Under §404
...§§325.2(a)(4), 327.4(a). 232. Id. §327.4(b) (2008). See Burney v. United States, 690 F.2d 1170, 1176, 13 ELR 20085 (5th Cir. 1982). 233. 817 F.2d 1070, 1073–74, 17 ELR 20657 (3d Cir. 1987). 234. 33 C.F.R. §327.4. See Hough v. Marsh, 557 F. Supp. 74, 79–80, 13 ELR 20610 (D. Mass. 1982). 235.......